FILED

United States Court of Appeals

Tenth Circuit

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

May 20, 2014

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.

No. 14-6024
(D.C. No. 5:05-CR-00168-L-4)
(W. D. Okla.)

TUYEN VU NGO,
Defendant - Appellant.

ORDER AND JUDGMENT*

Before BRISCOE, Chief Judge, ANDERSON and BRORBY, Senior Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore,
submitted without oral argument.
Defendant Tuyen Vu Ngo, appearing pro se, appeals from the district courts order

This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

denying his Fed. R. Crim. P. Rule 36 motion. Exercising jurisdiction pursuant to 28

U.S.C. 1291, we affirm the district courts order.
I
In September 2005, a federal grand jury in the Western District of Oklahoma
returned a two-count indictment charging Ngo and three codefendants with one count of
conspiracy to possess with intent to distribute methylenedioxymethamphetamine
(commonly referred to as ecstacy), in violation of 21 U.S.C. 841(a)(1), and one count of
possession with intent to distribute ecstacy, in violation of 21 U.S.C. 841(a)(1) and 18
U.S.C. 2. Ngo was tried on the two counts in March 2006 and a jury convicted him of
both counts. On July 10, 2006, Ngo was sentenced to a term of imprisonment of 240
months, to be followed by a three-year term of supervised release. The following day,
July 11, 2006, the district court entered a judgment and commitment (J&C) against Ngo.
Ngo filed a direct appeal challenging the sufficiency of the evidence presented at
trial. We affirmed his convictions. United States v. Tuyen Vu Ngo, 226 F. Appx 819,
826 (10th Cir. 2007). Ngo then filed a pro se motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. 2255. The district court denied that motion and we
subsequently denied Ngos request for a certificate of appealability. United States v.
Ngo, 307 F. Appx 242, 243-44 (10th Cir. 2009).
On November 21, 2013, Ngo filed a pro se motion pursuant to Fed. R. Crim. P. 36
requesting the district court to correct two errors in the J&Cs description of the terms
and conditions of Ngos supervised release that plainly conflict[ed] with the district
2

courts oral pronouncement of sentence. Motion at 2 (Dist. Ct. Docket. No. 267). The
first such error, according to the motion, was the statement in the J&C that Ngo shall
submit to one drug test within 15 days of release from imprisonment and at least two
periodic drug tests thereafter, as determined by the court. Id. at 2-3 (quoting J&C at 3).
According to Ngos motion, the district court made no mention of any such condition
during its oral pronouncement of his sentence. The second error identified in Ngos
motion was the J&Cs statement that Ngo shall not possess a firearm, destructive
device, or any other dangerous weapon. Id. (quoting J&C at 3). Although Ngos
motion conceded that the district court noted during its oral pronouncement that Ngo was
prohibited from possessing firearms or other destructive devices, Ngos motion asserted
that the district court nevertheless made no mention of so-called dangerous weapons.
Id.
On January 29, 2014, the district court issued an order denying Ngos Rule 36
motion. The district court concluded, in pertinent part, that there [wa]s no conflict
between [its] oral sentencing ruling and the written [J&C]. Order at 2 (Dist. Ct. Docket
No. 269). The district court noted that it twice told Ngo during the sentencing hearing
that he would be subject to the standard conditions of supervision. Id. Those
conditions, the district court noted, include the drug testing provision and the dangerous
weapons provision. Id. Moreover, the district court noted, the drug testing provision
is required by statute. Id. (citing 18 U.S.C. 3583(d)).
Ngo filed a timely notice of appeal.
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II
On appeal, Ngo challenges the district courts ruling by repeating verbatim the
arguments contained in his Rule 36 motion. We have never definitively outlined the
standard of review for dispositions of Rule 36 motions. See United States v. Gutierrez,
401 F. Appx 378, 380 (10th Cir. 2010) (We have yet to determine the standard of
review for Rule 36 motions.); United States v. Hayden, 10 F. Appx 647, 649 (10th Cir.
2001) (applying abuse of discretion standard); United States v. Sides, No. 93-5101, 1994
WL 38640 at *2 (10th Cir. Feb. 10, 1994) (applying clearly erroneous standard).
Fortunately, we need not resolve the standard of review question in this case because the
district courts decision is not subject to reversal under any conceivable standard of
review.
Federal Rule of Criminal Procedure 36 states that [c]lerical mistakes in
judgments, orders, or other parts of the record and errors in the record arising from
oversight or omission may be corrected by the court at any time and after such notice, if
any, as the court orders. Fed. R. Crim. P. 36. Rule 36 gives the court authority to
correct clerical-type errors, but does not give the court authority to substantively modify a
Defendants sentence. United States v. Blackwell, 81 F.3d 945, 948-49 (10th Cir. 1996)
(internal citations omitted).
Ngo asserts, as he did before the district court, that the district court made no
mention of either of the two challenged terms of supervised release during his sentencing
hearing. But it is undisputed that, during Ngos sentencing hearing, the [district] court
4

twice told [Ngo] he would be subject to the standard conditions of supervision. Order at
2 (Dist. Ct. Docket No. 269). Assuming that those statements by the district court at
sentencing were ambiguous, see United States v. Villano, 816 F.2d 1448, 1453 n.6 (10th
Cir. 1987) (noting that an ambiguity may exist when the extent of the sentence cannot be
ascertained from the language used), we conclude that they were subsequently clarified
by the district courts completion and filing of the J&C, see id. at 1453 (noting that an
ambiguity in the oral pronouncement of a sentence can be resolved by consulting the
J&C).
For these reasons, it is apparent from the record that the two purported errors in
the J&C that were identified in Ngos motion are not the type of clerical mistakes
encompassed by Rule 36. Both of the purported errors are, in reality, terms of
supervised release that the district court intentionally imposed and included in the J&C.
Consequently, Ngo cannot now seek to change those conditions by the filing of a Rule 36
motion. Any alteration of those terms in the J&C would amount to a substantive
modification of Ngos sentence, which would be beyond the authority granted the district
court under Rule 36. We therefore conclude that the district court did not err in denying
Ngo relief.

The district courts order denying Ngos Fed. R. Crim. P. Rule 36 motion is
AFFIRMED. Ngos motion for leave to proceed in forma pauperis on appeal is DENIED.

Entered for the Court

Mary Beck Briscoe

Chief Judge